Considered
and decided by Dietzen, Presiding Judge; Willis, Judge; and Ross, Judge.

U N P U B L I S H E D O P I
N I O N

ROSS, Judge

Gary Gundy appeals his conviction of felon in
possession of a firearm and possession of a short-barreled shotgun. He claims that the district court violated his
constitutional right to counsel and abused its discretion when it denied his
request to continue the trial so he could discharge his appointed attorney the
morning of trial and find private counsel.
Because we
conclude that the district court did not violate Gundy’s right to counsel or abuse
its discretion by denying Gundy’s motion to continue, we affirm.

F A C T S

This
case arises from a September 2004 dispute at Gary Gundy’s home between Gundy
and an acquaintance, Kacey Peterson. Each
dialed 911. The two continued to argue as
the 911 operator listened on a recorded line.
Peterson saw a shotgun near Gundy, and Gundy told the 911 operator that
it was a “sawed-off old 12-gauge thing,” that it was by his feet, and that he
was “keeping it away from her.” Later in
the call, Gundy told the 911 operator that he unloaded the shotgun and threw it
outside into the woods.

St. LouisCounty sheriff deputies arrived, asked Gundy
about the shotgun, and searched for it unsuccessfully. Gundy then indicated that it was beside the
house under a stack of shingles. Deputies
found it there. Its barrel was sawn off
to an illegal length, the stock was shortened, and it was loaded. The deputies arrested Gundy. He told them that he had accepted the gun as
a gift for protection and that he oiled it and cut the barrel. The state charged Gundy with possession of a
short-barreled shotgun.

Gundy
asked to be released without bail because he had recently started a small
business, had a dependent child, did not “have a whole lot of money,” and was
“just barely scratching” by. He also
applied for court-appointed counsel. The
district court noted that Gundy would be ineligible for appointed counsel based
on the financial information he provided.
Gundy maintained that he could not afford a lawyer but would try to
retain one, and he noted that he was “not a rich man by any means.” He posted a $2,500 bond and was released.

After
his release, Gundy requested appointed counsel on several occasions. Police arrested Gundy on a warrant after he
failed to attend his next scheduled court appearance. Gundy later appeared before a different district
court judge and again applied for appointed counsel. The district court found Gundy to be “indigent/employed”
and appointed counsel to represent him. Two
months later, the state charged Gundy for several unrelated offenses and he appeared
before another judge. Gundy applied for
appointed counsel, and the court appointed the same public defender to represent
him in that matter.

During
plea negotiations on the shotgun charge, the state warned Gundy that it might amend
the complaint to add a charge for being a felon in possession of a firearm,
which, based on Gundy’s criminal history, would have a presumptive sentence of
60 months’ incarceration. The public
defender advised Gundy to plead guilty to possession of a short-barreled
shotgun to avoid the more serious charge, but Gundy refused. The public defender asked Gundy to
acknowledge on the record his understanding that he could have pleaded guilty
to the lesser charge, avoided the more severe felon in possession of a firearm
charge, and, based on his criminal history, he would have faced a presumptive
sentence of only 23 months’ incarceration.
Gundy acknowledged that he understood his options, but he chose to plead
not guilty. The state filed an amended
complaint, adding the charge of possession of a firearm by a felon based on
Gundy’s conviction for a 1997 burglary.

At
about this time, Gundy was placed on probation in an unrelated matter and
required to submit to daily drug tests at his own expense. Gundy’s public defender objected, in part
because of Gundy’s claimed indigence.
During a status review hearing on March 2, 2005, at which Gundy
failed to appear, the district court questioned Gundy’s eligibility for appointed
counsel. The court reviewed three
applications for counsel that Gundy had completed and noted that he gave widely
disparate financial responses on each.
The court issued another warrant and set bail at $100,000 but allowed
the appointed counsel to continue until Gundy could explain the discrepancies.

Police
arrested Gundy on the warrant, and he appeared before yet another district
court judge on March 24, 2005. Gundy
again applied for appointed counsel. The
court again approved his application. He
responded to allegations that he violated the probation conditions of daily drug
tests by claiming that he did not have “any money” and “can’t pay” for them. Five days later Gundy reiterated that he
“didn’t have the money.” He also told
the court that he was unemployed, that he was seeking disability benefits for a
back injury, and that he “live[s] on hardly nothing.”

On
the morning of the jury trial on the shotgun charges and six months after his
arraignment, Gundy sought a continuance.
He told the court that he wanted to discharge his appointed counsel and “retain
[his] own lawyer.” Gundy claimed that he
lacked sufficient time to prepare a defense, that he did not spend enough time
with his appointed counsel concerning the case, and that his appointed counsel
told him that he had no defense. Gundy also
challenged the predicate burglary conviction upon which the felon in possession
of a firearm charge was based, claiming that the state had not provided proof
of the conviction during discovery and that it did not appear on his criminal record.

The
prosecutor answered that he had provided to defense counsel certified records
of the predicate burglary conviction. He
also noted that he had been the prosecutor and that Gundy’s current attorney had
represented Gundy when Gundy pleaded guilty to the burglary in December 1997. The prosecutor also noted that the state was
ready to proceed and that he did not know whether the state would be prejudiced
by delay.

The
public defender acknowledged that he told Gundy that he was “not aware of any
defense” to the charges, but he insisted that he and Gundy “certainly spent
plenty of time talking about this case,” that he was ready to proceed, and that
he would “certainly test the [g]overnment’s burden of proof.” He contradicted his prior representations and
stated that he had “no doubt” that Gundy had the ability to hire private
counsel and that “[h]e’s always had the ability to do that.” The district court denied Gundy’s request to
continue and noted that it found no prejudice to Gundy by proceeding with the
jury trial while being represented by the chief public defender.

To
prevent the jury from hearing details about Gundy’s predicate felony conviction
at trial, Gundy acknowledged the December 1997 burglary and stipulated that he
was unauthorized to possess a firearm.
The jury returned guilty verdicts on both counts. The district court sentenced Gundy to the
presumptive sentence of 60 months’ incarceration. This appeal follows.

D E C I S I O N

Gundy contends that the
district court’s decision to deny his motion to continue the trial requires
reversal of his conviction. We disagree. Whether to grant a continuance is a matter
within the district court’s discretion, based on the facts and circumstances
surrounding the request. State v. Worthy, 583 N.W.2d 270, 278 (Minn. 1998). A defendant “may not demand a continuance for
the purpose of delay or obtain a continuance by arbitrarily choosing to substitute
counsel at the time of trial.” State v. Vance, 254 N.W.2d 353, 358 (Minn. 1977). And while an indigent defendant “may request
a substitution of counsel, his request will be granted only if exceptional
circumstances exist and the demand is timely and reasonably made.” Id. at
358. To determine whether the district court
acted within its discretion by denying a motion to continue, we also consider whether
the defendant “was so prejudiced in preparing or presenting his defense as to
materially affect the outcome of the trial.”
Id. at 358-59.

Gundy focuses almost
entirely on his Sixth Amendment right to counsel, highlighting that he has a
constitutional right to retain counsel of his choice. But the district court’s denial of Gundy’s motion
to continue did not implicate the Sixth Amendment. Although Gundy accurately describes his right
to counsel, possessing this right does not mean that the district court abused
its discretion by not granting him a continuance so that he could retain
private counsel. It is well established
that “an indigent defendant does not have the unbridled right to be represented
by the attorney of his choice.” Worthy, 583 N.W.2d at 278; see also State v. Fagerstrom, 286 Minn. 295, 299, 176 N.W.2d
261, 264 (1970). The district court did not
prevent Gundy from retaining his own counsel during the six months before the
trial, at the opening of trial, or after the trial began. The district court merely exercised its
discretion to deny Gundy’s request for a continuance made for the first time on
the morning of trial.

Gundy claims that his appointed
counsel had not spent much time on the case and that he told Gundy that he knew
of no defense. The record contradicts
Gundy’s assertion that his attorney did not spend time on the case. Within three days of his appointment,
the public defender filed a demand for discovery, disclosure, production of
documents and exculpatory evidence. At
the omnibus hearing, the public defender informed the court that he had met
with Gundy, discussed the case, obtained discovery, and met with the
prosecutor. He also stated that, having
read the file, he saw no suppression issues and that Gundy agreed. Just before trial, the public defender
informed the court that he and Gundy had spent sufficient time discussing the
case, and that he was ready to proceed and challenge the government’s case. These circumstances did not require the district
court to grant a continuance based on the alleged unpreparedness of Gundy’s
attorney.

Gundy’s
disappointment at his counsel’s bleak assessment that he knew of no defense to
the charges does not alter our conclusion because “attorneys have a duty to
render candid advice to clients.” Worthy, 583 N.W.2d at 276. “General dissatisfaction or disagreement with
appointed counsel’s assessment of the case does not constitute the exceptional
circumstances needed to obtain a substitute attorney.” Id. at
279. Gundy’s counsel doubtless
appreciated that Gundy faced overwhelming facts. Concerning the charge that he possessed a
short-barreled shotgun, police had found the shotgun where Gundy told them they
would, Gundy admitted that he had sawn off a length of the barrel, and he
acknowledged that the gun belonged to him.
Concerning possession as a felon, Gundy also stipulated to the predicate
felony conviction. In addition to the
911 recording in which Gundy admitted to having the shotgun and the eyewitness
who would testify that she saw Gundy holding the gun, his own admissions merit his
attorney’s warning that he did not have a plausible defense. Seeid. (finding no abuse of discretion
when district court refused defendants’ motion to continue to obtain private counsel
after defense attorneys told their clients that evidence against them was quite
strong, that chances for success at trial were not good, but that they were prepared
and willing to try their cases). And contrary
to Gundy’s claim on appeal of a “breakdown in the relationship” with his
attorney and his “real dissatisfaction” with him, the attorney continued to
represent him on his December 2004 charges, and he negotiated a plea agreement in
which a first-degree burglary charge with a presumptive 100-month sentence was
dismissed.

Neither was Gundy’s request
for a continuance timely and reasonably made.
The supreme court has found continuance requests properly denied when a
defendant has ample opportunity to obtain new counsel, but waits until the last
minute to exercise that option. In Vance, for example, the defendant was
provided with a competent court-appointed attorney who was prepared for
trial. The defendant had 11 weeks to
obtain a private attorney, but he did not request a continuance until a few days
before trial. Vance, 254 N.W.2d at 359. The supreme court concluded that the district court
did not abuse its discretion by denying the request for continuance. Id. Similarly, in Worthy, the defendants had experienced and competent
court-appointed attorneys for 45 days but did not request a continuance to hire
private counsel until the first day of trial.
The supreme court again concluded that the district court did not abuse
its discretion by denying the request. Worthy, 583 N.W.2d at 278. Likewise here, the district court had a
sufficient basis to find Gundy’s request untimely and unreasonable. Gundy was appointed the chief public defender,
whom the court recognized to be one of the most experienced attorneys in the
district and who had prepared the case for five months. Because Gundy was provided competent legal
representation and “took full advantage of that representation up until the
morning of the[] scheduled trial date,” the district court was not required to
find his request for a continuance to be timely or reasonable. See id.
at 276, 278-79 (finding that district court properly refused to appoint new
counsel when defendants waited until morning of trial to make request).

Gundy
also does not demonstrate that the denial “so prejudiced [him] in preparing or presenting his
defense as to materially affect the outcome of the trial.” Vance,
254 N.W.2d at 358-59. The public
defender cross-examined the state’s witnesses and presented a defense witness
who claimed to own the shotgun and who asserted that he had placed the shotgun
under the shingles beside Gundy’s home but had forgotten to retrieve it. The public defender had represented Gundy
many times and was aware of Gundy’s criminal history. He tried to convince Gundy to accept the plea
bargain to avoid trial, but Gundy refused.
No prejudice is apparent.

In addition to the other substantive
and procedural infirmities in Gundy’s request, the record suggests that Gundy never
attempted to retain private counsel during the course of the proceedings. Gundy had repeatedly represented to the court
that he could not afford a lawyer, that he could not pay for drug screens, that
he had little money and few assets, that he was in debt and owed child support,
that he was unemployed, and that he was applying for social security disability
benefits. The public defender had also
previously represented to the court that Gundy was indigent. Gundy submitted at least four successful applications
for appointed counsel in three criminal matters during this same period.

There is also no merit to Gundy’s
claim that the court “never offered [him] the option to represent himself” and
instead “pressed [Gundy’s] appointed counsel” on him. Gundy never suggested during the proceedings that
he wished to represent himself. SeeMinn. R. Crim. P. 5.02, subd. 1(4) (“If a
defendant appearing without counsel . . . does not request counsel
and wishes to represent himself or herself, the court shall ensure that a
voluntary and intelligent written waiver of the right to counsel is entered in
the record.”).

Gundy raises three additional
issues in a supplemental pro se brief, but none warrants a lengthy discussion. He first repeats that he was denied the right
to effective assistance of counsel when the court refused to grant a
continuance to hire new counsel. For the
reasons stated above, we reject this assertion. Second, he asserts that the district court committed
“serious misconduct and show[ed] bias when he gave his personal opinion of
defense counsel.” Gundy seems to refer
to the district court’s comment that “in terms of criminal defense attorney[s] . . .
you’re not gonna be doing better than [the chief public defender],” made during
the discussion on Gundy’s continuance motion.
Gundy does not explain how this comment, which was made before trial and
outside the presence of any potential jurors, demonstrates improper bias. We therefore reject the assertion as
unfounded. Third, Gundy claims that the
“prosecutor committed serious misconduct when he expressed his personal opinion
of defense counsel and to the justness of the prosecution and to uncorroborated
evidence.” But the prosecutor merely agreed
with the court’s assessment of the public defender’s capabilities and responded
to Gundy’s challenge to the predicate felony.
Like his appellate counsel’s arguments, Gundy’s pro se brief provides no
basis to reverse his convictions.

The district court did not offend
Gundy’s Sixth Amendment rights or abuse its discretion by denying Gundy’s
motion for a continuance to find and retain private counsel. We therefore affirm Gundy’s convictions.